No. 94-390

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

APPEAL FROM: District Court of the Fourteenth Judicial District,

In and for the County of Musselshell,

The Honorable Roy Rodeghiero, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Jock B. West, West, Patten, Bekkedahl & Green,

Billings, Montana

For Respondent:

Joseph P. Mazurek, Attorney General, Jennifer

Anders, Assistant Attorney General, Helena, Montana;

John Bohlman, Musselshell County Attorney, Roundup,

Montana

Filed:

Submitted on Briefs: October 19, 1995

Decided: January 18, 1996
Justice William E. Hunt, Sr. delivered the Opinion of the Court.

On October 5, 1993, Ronald Treible, Jr. was found guilty by a

jury of felony theft in the Fourteenth Judicial District Court,

Musselshell County and was sentenced to two years deferred.

Defendant appeals his conviction.

We affirm.

The sole issue on appeal is whether, following the completion

of the trial, the District Court erred in denying defendant's

motion for a directed verdict for failure to prove elements of

felony theft.

FACTS

On January 23, 1993, the owners of the Melstone Bar and

Cafe, Melvin and Judy Metzger, called the police to report their

bar had been broken into and that there were several missing items,

including chewing tobacco, cigarettes, hard liquor, a bottle of

champagne, several cases of beer, five pounds of hamburger, and a

bag of shrimp. The day after the break-in Melvin Metzger received

an anonymous phone call that a bottle of liquor taken from the Bar

could be found at the Murnion shop, a local garage. Mr. Metzger

called the information to Deputy Sheriff Fischer, the investigating

officer.

Deputy Fischer went to the Murnion shop and asked to look

around. While there, he observed a bottle of Crown Royal on the

shop bench. Knowing this was one of the items missing from the

Bar, the Deputy asked to search the adjoining trailer house. At

the time, defendant was renting a room at the Murnion trailer.

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After searching the Murnion trailer, Fischer seized almost two

cases of bottled beer, an empty champagne bottle, unopened

cigarettes, a piece of plastic wrap, two pieces of waxed paper, and

several empty beer boxes and bottles. Fischer then questioned

B.J. Murnion who told Fischer the names of the people who had

attended a party in the trailer the previous evening. Fischer

contacted these people for statements.

Upon learning that J.B. Benson was one of the people present

at the party, Fischer obtained permission to search Benson's

trailer. In that search, the Deputy seized chewing tobacco,

another bottle of Crown Royal, a fifth of Jim Beam, a bottle of

Jack Daniels, close to three cases of beer, forty lottery tickets,

cigarettes, and several empty beer bottles and cans.

According to the testimony provided at trial, several people

had attended a party at the Murnion trailer on the night of the

break-in at the Bar. Sometime after 2:00 a.m., J.B. Benson, Barry

DeJaegher and defendant left the party and later returned with

several cases of beer.

Following the investigation J.B. Benson, Barry DeJaegher and

defendant were charged with burglary of the Melstone Bar and Cafe.

A trial was conducted on October 4, 1993. The jury found defendant

guilty of felony theft on the basis of a lesser included offense

instruction offered by the State.

The sole issue on appeal is whether, following the completion

of the trial, the District Court erred in denying defendant's

3
motion for a directed verdict for failure to prove elements of

felony theft.

Defendant does not challenge the validity of the lesser

included offense instruction on felony theft, but rather challenges

the sufficiency of the evidence to sustain the jury's verdict.

The standard of review for a District Court's decision on a

motion for a directed verdict is the same standard that applies to

a decision on a motion to dismiss due to insufficient evidence.

State v. Downing (1989), 240 Mont. 215; 217, 783 P.2d 412, 414.

The motion should only be granted when there is no evidence upon

which a trier of fact could render a verdict. State v. Lyons

(1992), 254 Mont. 360, 363, 838 P.2d 397, 399.

Felony theft is defined by 5 45-6-301, MCA (1993), set forth

in part as follows:

(1) A person commits the offense of theft when the person

purposely or knowingly obtains or exerts unauthorized

control over property of the owner and:

(a) has the purpose of depriving the owner of the

property;

. . .

(b) A person convicted of the offense of theft of

property exceeding $300 in value or theft of any commonly

domesticated hoofed animal shall be fined not to exceed

$50,000 or be imprisoned in the state prison for any term

not to exceed 10 years, or both.

Defendant contends that this Court reversed the conviction of

J.B. Benson, who had also been charged in connection with the

break-in at the Melstone Bar. J.B. Benson was convicted of the

crime of burglary. We held the State had failed to prove by either

direct or circumstantial evidence that J.B. Benson had unlawfully

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entered the Melstone Bar with the purpose of committing an offense.

A conviction of burglary may be upheld if possession of stolen

property, accompanied by other incriminating circumstances, and a

false or unreasonable explanation by the accused is shown. State

v. Benson (1994), 266 Mont. 415, 418, 860 P.2d 1338, 1340.

Because the jury convicted defendant of the crime of felony

theft as a lesser included offense of burglary, we need not discuss

the elements of burglary. The testimony shows that the defendant

had unauthorized control over the property of the Metzgers

depriving them of the property.

The defendant rented a room in the Murnion trailer. Defendant

testified he was paying rent for the trailer at the time of the

robbery, but claims that he did not stay there very much and

actually resided with his parents at the family ranch. On the

night of the robbery defendant spent some time at the trailer alone

prior to the robbery, was there with friends after the robbery and

spent the night there.

The evidence showed that items taken from the Bar were found

in the Murnion trailer in the common areas used by all of the

occupants of the trailer. Stolen merchandise was found in the

kitchen, in the refrigerator and in the garbage can. In addition,

Deputy Fischer testified that he found four packs of unopened

Marlboro cigarettes in the defendant's bedroom in the Murnion

trailer.

Judy Metzger identified the plastic wrap found in Murnion's

trailer as the wrap used to cover hamburger patties at the Cafe.

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She also identified the wax paper found in Murnion's trailer as the

same kind of paper she used to separate the patties before wrapping

them in plastic.

Melvin Metzger identified the bottle of Jim Beam by its

handwritten price, and he was also able to identify the handwriting

on the Crown Royal box found in the trailer. Metzger further

testified that the bottle of champagne seized was the same brand

purchased by the Bar for the New Year's party and that the

champagne had been taken the night of the crime.

The Metzger's testified that the Bar was broken into between

2:00 and 5:00 a.m. Defendant admits he left the party with J.B.

Benson and Barry DeJaegher around 2:00 a.m. to retrieve more beer.

When the three returned to the party in the Murnion trailer they

were carrying three cases of beer.

We conclude there was sufficient evidence in the record to

support the jury finding that the defendant was guilty of felony

theft. Circumstantial evidence when sufficient, will support a

criminal conviction. State v. Bromgard (1993), 261Mont. 291, 295,

862 P.2d 1140, 1142. We hold the District Court did not err in

denying the defendant's motion for a directed verdict.

Affirmed

We Con ur:

FhLP~ i
Justices
Justice James C. Nelson specially concurs.

I agree with the result of our opinion--i.e. that there was

sufficient circumstantial evidence to sustain Treible's conviction

of felony theft. I write separately, however, out of my concern

that any implication be drawn from our opinion that felony theft

is, in fact, a lesser included offense of burglary. On appeal

Treible did not challenge the status of felony theft as a lesser

included offense of burglary, and, accordingly, we have not ruled

on that issue. Whether felony theft is a lesser included offense

of burglary under § 46-l-202(8), MCA, and under the tests

enunciated in the case law remains to be decided in some future

case, and our opinion here should not be read as having decided

that issue one way or the other.
Justice W. William Leaphart, dissenting.

I dissent from the Court's opinion and would hold that the

District Court erred in denying Treible's motion for a directed

verdict. The evidence presented by the State was insufficient to

support the conviction. Treible's connection to the stolen

property is even more tenuous than co-defendant Benson's

connection--which this Court found to be inadequate to support the

conviction. State v. Benson (19941, 266 Mont. 415, 880 P.2d 1338.

As the Court points out, the State concedes that there is a

lack of direct evidence linking Treible to the stolen property.

Although Treible rented a room from Murnion, none of the stolen

property was tied to defendant Treible or found to be in his

possession or control. The stolen property was found in the

Murnion garage, Murnion's trailer, and in Benson's trailer. None

of the evidence the Court points to in sustaining Treible's

conviction for felony theft was connected to Treible, rather, it

was tenuously tied to co-defendants Murnion and Benson. Section

45-6-301, MCA, provides:

(1) A person commits the offense of theft when the

person purposely or knowingly obtains or exerts

unauthorized control over property of the owner and:

(a) has the purpose of depriving the owner of the

property . . [emphasis added].

The State has not proven that Treible obtained or exerted

unauthorized control over the property of the owner as required by

§ 45-6-301, MCA. In Benson, this Court rejected the State's

9
argument that Benson's possession of the stolen lottery tickets and

items consistent with others taken from the bar was enough to

sustain the conviction for burglary. Benson, 880 P.2d at 1339-40.

This Court has held that control over the stolen property is

an essential element of the offense of theft. State v. Campbell

(1978), 178 Mont. 15, 582 P.2d 783. Mere association with the

stolen article is not sufficient to show control over the stolen

article and does not establish the control element of theft.

Campbell, 582 P.2d at 785. Here, the State did not even prove that

the stolen property was within Treible's possession--let alone his

control. As the renter of a room in Murnion's trailer, Treible did

not have exclusive possession over the contents of the entire

trailer. As the Court in Campbell clearly stated:

"[IIn order that recent possession be evidence of guilt

it must be exclusive in the accused. The possession must

be such as to indicate that the accused and not someone

else took the property. If the place where the property

is found is such that another person could have had

access thereto as well as the accused, it cannot be said

that the property was in the accused's exclusive

possession and the circumstance would not be evidence of

his guilt."

Camobell, 582 P.2d at 785 (citation omitted). In this case, the

State alleged that Treible and two co-defendants were responsible

for the theft. Further, as the Court's opinion in Benson

recognizes, all co-defendants had access to the locations where the

stolen property was found. In addition, other individuals were

present the night of the incident. Benson, 880 P.2d at 1340.

Although the State was not required to prove that Treible's

explanation was false or unreasonable, the State was still required

10
to prove the elements of felony theft, namely, that Treible

obtained or exerted unauthorized contr,ol over the stolen property.

The State failed to meet that burden. Accordingly, I would reverse

the District Court.

Justice Charles E. Erdmann joins in the foregoing dissent of

Justice W. William Leaphart.

aa

Justice --
January 18, 1996

CERTIFICATE OF SERVICE

I hereby certify that the

following named:

: following certified order was sent by United ‘States mail, prepaid, to the

Jock L. 1. wuc,

West, Patten, ‘De:nneuillu LY ureen

301 No. 27th St., Ste. 100

Billings, MT 59101

Hon. Joseph P. Mazurek, Attorney General

Jennifer Anders, Assistant

Justice Bldg.

Helena, MT 59620

John Bohlman

Musselshell County Attorney

P.O. Box 248

Roundup, MT 59072-0248

ED SMITH

CLERK OF THE SUPRE

STATE OF MONTANA

{ME COURT